Can A Party Defeasible Fees in Property?

Yes, a party can create defeasible fees in property through specific language in conveyance instruments, which stipulate conditions under which the present estate may be terminated.

Defeasible fees are a type of fee simple estate that can be terminated upon the occurrence of a stated event. The most common forms of defeasible fees include fee simple determinable, where the estate automatically reverts to the grantor upon the occurrence of a specified event, and fee simple subject to condition subsequent, where the grantor retains the right to reclaim the property if a condition is breached. It is essential that the language used in the conveyance clearly articulates the defeasible nature and the conditions required for termination.

In fee simple determinable, the future interest is held by the grantor and is recognized by the phrase "so long as" or "until." For example, if O grants land to A "so long as the property is used for educational purposes," A's estate may be defeated if the land is used for anything else. Alternatively, a fee simple subject to condition subsequent requires more proactive measures, as the grantor must assert the right of entry to reclaim the property if the specific condition is violated, typically framed with the phrase "but if" or "on the condition that."

To analyze whether a fee is defeasible, courts look for clear and unambiguous terms in the grantor's language. Clear intent by the grantor is critical in establishing whether a fee is defeasible and under what conditions it may terminate. Ambiguities may lead to interpretational issues, often requiring judicial determination of the parties' intentions.

Legal practitioners must also consider both state laws, which may influence the enforcement of defeasible fees, and the policy implications behind such arrangements, including the potential for land to revert back to a grantor. This ever-important balancing act between grantor's intent and subsequent grantee's rights can also give rise to litigation if the terms are not adequately defined.

• 1Duke v. Dusharm (1983) - established that clearly defined conditions are necessary for a valid defeasible fee.
• 2Mann v. State of New York (1952) - clarified distinctions between types of defeasible fees and enforceability.
• 3Boston University v. B. Sun, Inc. (2002) - examined the implications of ambiguity in defeasible fee language.

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